Social Media in the Workplace: Legal Risks and Case Studies

1 1 | 2009 LPSocial Media in the WorkplaceSocialSocialMedia in the workplace : Media in the workplace : Legal Risks and Case StudiesLegal Risks and Case StudiesPresented By:Daniel B. KleinPartner, Seyfarth Shaw LLPO ctober 5, 20102 | 2009 LPSocial Media in the WorkplaceAgenda What is Web Web Case Studies Web Policy Considerations3 | 2009 LPSocial Media in the WorkplaceManagement Concerns 74% of managers believe that socialnetworking sites put their firm/brandreputation at risk 15% consider these Risks at the Boardlevel 17% have risk mitigation policy/programin place** Social Networking and reputational risk in the work place Deloitte LLP 2009 Ethics & workplace Survey results.

2 Available at | 2009 LPSocial Media in the WorkplaceKnow the Risks of Web Activity Discrimination / Harassment Privacy Violations Stored Communications Act Negligence Defamation IP Infringement, Off-the-Clock Work National Labor Relations Act5 | 2009 LPSocial Media in the workplace Employees Use of Web Employers Use of Web in Recruiting Employer-Sponsored Social NetworkingAnd Where to Find Them6 | 2009 LPSocial Media in the WorkplaceConsequences ofUnregulated Web Activity Information Technology Stress on finite systems and networks Exposure to viruses and malware Management Operations Lost productivity Compensable time questions Employee morale issues employeefavoritism, improper inquiries (to friend ornot to friend )

3 7 | 2009 LPSocial Media in the WorkplaceDriven to Distraction? Companies that allowFacebook lose anaverage of inemployee productivity 77% of workers whohave a Facebookaccount use it at work. One in 33 workers onlyuse Facebook at work. Of those using Facebookat work, 87% said theyhad no clear businessreason for using the | 2009 LPSocial Media in the WorkplaceConsequences ofUnregulated Web Activity Communications/Public Relations: Forum for public complaints about company orworkplace Client and customer relations issues FTC endorsement guidelines Human Resources: Circumvention of neutral reference policies Morale issues Discrimination, harassment, retaliation9 | 2009 LPSocial Media in the WorkplacePublic Relations Problems?

4 Dear @SouthwestAir I know I m fat, but was CaptainLeysath really justified in throwing me off a flight forwhich I was already seated? So, @ SouthwestAir, go f** yourself. I broke noregulation, offered no safety risk (what, was Igonna roll on a fellow passenger?). I was wronglyejected from the And f** your apologetic$100 voucher, Dear @SouthwestAir, Captain Leysath deemed me a safety risk. Again: I m way But I m not THERE just yet. But if I am, why wait till my bag is up, and I mseated WITH ARM RESTS in front of apacked 10 | 2009 LPSocial Media in the WorkplaceEmployee Relations Problems?

5 11 | 2009 LPSocial Media in the WorkplaceLegal Risks of Unregulated Web Activity Legal Risks : Document retention and e-discovery issues Exposure of confidential information/tradesecrets Vicarious liability for discrimination,retaliation, defamation, invasion of privacy,trademark & copyright infringement,otherwise illegal content12 | 2009 LPSocial Media in the WorkplaceWeb : Discrimination / Harassment Black police officerssue Philadelphia failing to shutdownracist socialnetworking site Beer Summit 09 Boston PD firesofficer for sendingmass-email regardingarrest of ProfessorHenry Louis Gates13 | 2009 LPSocial Media in the WorkplaceOther Liability Abuse of Computer Policies/Systems Employee arrested after using his work computer toaccess and disseminate child pornography Employer held liable for failing to take actionEnforce your computer-use policiesTrain your managers14 | 2009 LPSocial Media in the WorkplaceLimits on Regulating Web

6 Activity Legal Considerations for Private Employers Cause restrictions on termination NLRA protected concerted activity Whistleblower protections SOX Retaliation concerns followingBurlington North Statutes protecting lawful off-duty activities, use oflawful products ( , smoking bans) FCRA and other limits on background checking Restrictions on use of personal identifyinginformation Privacy considerations15 | 2009 LPSocial Media in the WorkplaceLimits on Regulating Web Activity Further Legal Considerations Electronic Communications Privacy Act Stored Communications Act Communications Decency Act16 | 2009 LPSocial Media in the WorkplaceStored Communications Act Pietrylo v.

7 Hillstone Employees at Houston s Restaurant start GripeGroup on MySpace Managers eventually gain access to the site Terminations (and federal lawsuits) | 2009 LPSocial Media in the WorkplaceLimits on Regulating Web Activity Additional Legal Considerations forPublicEmployers: Privacy and Fourth Amendment concerns Quon v. City of Ontario First Amendment concerns Anti-SLAPP statutes18 | 2009 LPSocial Media in the WorkplaceMore Limits on Regulating Web Activity Public Relations Considerations Drawing greater attention to unfavorableposts Causing same or other posters to post evenmore Creating public perception that company is unfair to employees or customers Turning into Big Brother 19 | 2009 LPSocial Media in the WorkplaceMilestones in Life of Your Web Policy Pre-Employment (Screening)

8 Discrimination Disparate Treatment Fair Credit Reporting Act During Employment Discipline Marketing Post-Employment (Recommendations) Review and recommendation Risks on LinkedInor similar sites (circumvention of neutral referencepolicies)20 | 2009 LPSocial Media in the WorkplaceE-Recruiting Think before you Google: definitions of applicant / application and resultingrecordkeeping obligations for records from searches restrictions on background checks protection of lawful off-duty activity (in)accuracy and (un)reliability of online information Risks in learning protected class information obligation to comply with company policies, both insearching for and using information Risks of inconsistent practices in searching21 | 2009 LPSocial Media in the WorkplaceE-Recruiting Best Practices Develop guidelines as to type of informationsought, how it relates to job qualifications,what types of information may bedisqualifying and why Comply with FCRA and other statutes re.

9 Background checks, particularly where a thirdparty entity is providing the information Comply with statutes pertaining to arrestand/or conviction records and use anddisclosure of such information22 | 2009 LPSocial Media in the WorkplaceE-Recruiting Best Practices (cont.) Develop protocols as to what search engines,networking sites or other Internet resourceswill be used, and procedures for verifyinginformation obtained Run searches consistently as to allcandidates for a given position, regardless ofprotected class status Comply with anti-discrimination laws Build firewall between HR and hiringmanagers to insulate decision-makers fromprotected trait information23 | 2009 LPSocial Media in the WorkplaceE-Recruiting Best Practices (cont.)

10 Consider providing applicants opportunity torespond / explain If search results disqualify applicant, recordresults used and reasons why disqualifying Retain search results consistent with thecompany s customary record retentionprotocols24 | 2009 LPSocial Media in the WorkplaceCriminal Background Checks Mass. Ban The Box CORI Reform Limits on direct inquiriesinto arrest andconviction records No first convictions for drunkenness, simple assault,speeding, minor traffic violations, affray ordisturbance of the peace No misdemeanors where conviction or sentenceended 5 or more years ago (unless convicted ofanother offense since that time) No sealed records regarding prior arrests, criminalcourt appearances or convictions.